May a Final Restraining Order Be Denied In New Jersey When One Spouse Has Been Assaulted By The Other?

March 20, 2014
By
Edward R. Weinstein

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As a family law attorney, I am acutely aware that it is inevitable that
during a marriage the parties will have arguments. Sometimes a fight could
just involve yelling, whereas other times it could get physical. In the
event that one party physically injures (i.e., assaults) the other, the
victim will likely be entitled to get a restraining order. From a lawyer’s
perspective, this is certainly the intent of New Jersey’s Prevention of
Domestic Violence Act. Yet, if the injury was minor and unintentional, a final restraining order
will not likely be granted. An absence of a history of domestic violence
also comes into play. That was the case in the recent New Jersey Appellate
Division decision of
M.K.B. v. J.R.B.

In the case the parties were married in 2001 and living together at the
time of the incident that gave rise to the litigation. Both parties were
retired; the wife was 70 years old and the husband 68. In December 2012
the husband had surgery for a liver transplant. A few months later in
February 2013 when he got home from the hospital, he began to record his
conversations with his wife. Although the wife claimed to still love her
husband, the husband had secretly retained an attorney in October 2010
for the purpose of filing for a divorce.

On October 28, 2013 the wife was in the bedroom when he husband came to
her door and said that somebody was there to see her. She did not answer
since she was on the phone talking to her sister. However, the husband
stated again that someone was there to see her. However, the second time
he told her that somebody was there to serve her divorce papers and if
she didn’t come out, they would send in state troopers. The husband
opened the bedroom door, let the man in to serve her the divorce papers
and then went downstairs.

At that point, the wife heard a recording of her voice playing downstairs.
She approached her husband and asked him why he had been recording her.
She also asked to hear the recording, but he laughed at her. Angry, the
wife reached for the recorder and grabbed her husband’s wrist, scratching
him with her fingernails before getting the recorder from him. She quickly
ran back to her bedroom. When the husband came upstairs and asked for
the recorder back, she claimed she tossed it out the window; however,
when the husband went back down and outside to look for it, it wasn’t there.

Later on that day the husband left the house and stopped a police officer
directing traffic to get some advice on what had just occurred. After
talking to the husband, the officer relayed the information to his headquarters
and two other officers reported to the home. They interviewed both parties
and observed the scratches on the husband’s wrist. Additionally,
the officers told the husband that he had the right to obtain a temporary
restraining order, yet he declined to do so. However, one of the officers
testified that based on the attorney general’s guidelines for domestic
violence, the wife’s arrest was mandatory.

Thereafter, the wife was arrested and charged with simple assault; however,
she was released a few hours later and returned home. During that time,
her husband had changed his mind and filed the temporary restraining order
like the officers told him to do. The next day on October 29th, the husband
filed an amended temporary restraining order adding a claim that he “suffered
mental abuse, which had been going on 10 months, ever since he had the
transplant, and that is was non-stop verbal hollering.” Later that
evening, the husband knocked on his wife’s bedroom door and asked
her to move her car. When she got outside, there were three police cars
and an officer served her with the restraining order, informing her that
she had 20 minutes to leave the premises.

The next day on October 30th, the wife filed for and obtained a temporary
restraining order against her husband for harassment and assault. She
claimed that her husband kicked her when she tried to pry the recorder
from his hands. The two requests for final restraining orders were consolidated
and tried together.

The trial judge found no history of domestic violence between the parties.
Rather the court believed that what had happened was simply a marital
quarrel. However, the judge did find that the wife assaulted her husband
when she put her hands on his wrist and “struck him with her nails.”
The court noted that the husband was frail and still recovering from his
surgery. Therefore, the court held that the husband’s injuries were
“exasperated and more extensive than would have been suffered if
he wasn’t taking medication and been in such a delicate state.”
Additionally, the court stated that the husband’s testimony was
credible that he did not kick his wife.

On the other hand, the court found that not only did the wife assault her
husband, but she also was not credible because she gave conflicting testimony.
Therefore, the court dismissed the wife’s complaint. She appealed.

On appeal, the wife argued that the trial court erred in granting her husband
the final restraining order. The New Jersey Appellate Court primarily
looked to the Prevention of Domestic Violence Act for guidance. Pursuant
to the act, before a final restraining order could be issued, the court
would have to find that an act of violence occurred. Once the court determined
that such act occurred, it would have to consider the history of domestic
violence between the parties and the existence of immediate danger to
the alleged victim.

As to the first part, the trial court found that the husband proved that
his wife had assaulted him when she forcefully grabbed his wrist and scratched
him with her fingernails. However, the Appellate Division believed that
the wife did not intend to injure her husband when reaching for the recorder.
Additionally, the New Jersey Appellate Division reiterated that there
was no prior history of domestic violence between the parties. Instead,
the court believed that the wife’s behavior was prompted by her
husband taunting her by recording her conversations. Therefore, the New
Jersey Appellate Division reversed the findings of the trial court and
vacated the final restraining order entered on the husband’s behalf.

The moral of this story, so to speak, is that “intent” is an
essential element in order to find that someone has committed the crime
of assault. In this case, the wife did not intend on assaulting or injuring
her husband. Here, the husband with the tape recorder, which led to their
struggle, was taunting the wife. Therefore, on appeal, the court felt
that the husband’s actions rose to a level that made the wife’s
reaction “reasonable” and not a violation of New Jersey’s
Prevention of Domestic Violence Act. It is also vey important to note
that there was not any history of domestic violence by either party (here,
especially the wife having no history of domestic violence) was a major
factor in the court dismissing the Final Restraining Order that the trial
court had issued against her.

If you or a loved one faces a domestic violence situation, please immediately
contact my office to learn more about how my associate lawyers and I may
best help you. Thank you.

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